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Sm. Nivanani Debi W/O Jaharlal Bhattacherjee and anr. Vs. Chhakuram Doloi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal416
AppellantSm. Nivanani Debi W/O Jaharlal Bhattacherjee and anr.
RespondentChhakuram Doloi
Cases ReferredGour Mohan v. Chandi Charan
Excerpt:
- .....193 is sufficiently wide to include execution proceedings. in dealing with the second point the learned district judge held that the section would not apply if the lease was not a pure jalkar but included the sub-soil. as, however, there is no evidence on the point, he allowed the objection. here the learned district judge appears to have put the bur den of proof on the wrong side. it is for the judgment-debtor to show that he is entitled to the protection of the section, and if he fails to adduce the evidence necessary to bring his case within its terms, his objection will be overruled. mr. sen however was content to argue that the objection fails in either case. if the lease includes the sub-soil the view taken by the learned district judge is supported by the decision in gour mohan.....
Judgment:

Henderson, J.

1. This appeal is by the decree holders. The question involved is the application of Section 168A, Bengal Tenancy Act. It is unfortunate that the respondent is not represented but Mr. Sen has put the case fairly before me. The suit was for rent due on a jalkar. The present execution application is for the sale of certain Nishkar properties. The judgment-debtor filed an application under Section 47, Civil P.C, to the effect that such execution is barred under Section 168A, Ben. Ten. Act. Two arguments have been put forward in support of the appeal- (1) that Section 193, Ben. Ten. Act, does not include the execution proceedings and (2) that Section 168A, Ben. Ten. Act, is excluded by its terms. In my opinion, the term 'suit' in Section 193 is sufficiently wide to include execution proceedings. In dealing with the second point the learned District Judge held that the section would not apply if the lease was not a pure jalkar but included the sub-soil. As, however, there is no evidence on the point, he allowed the objection. Here the learned District Judge appears to have put the bur den of proof on the wrong side. It is for the judgment-debtor to show that he is entitled to the protection of the section, and if he fails to adduce the evidence necessary to bring his case within its terms, his objection will be overruled. Mr. Sen however was content to argue that the objection fails in either case. If the lease includes the sub-soil the view taken by the learned District Judge is supported by the decision in Gour Mohan v. Chandi Charan (10) 5 I.C. 158 (Cal.), On the second alternative it is necessary to note the terms of Section 168A: The reference is to a de cree for arrears of rent due in respect of a tenure or holding. In view of the definition of these terms in Section 3 of the Act, it seems to me to be impossible to say that Section 168A applies to a decree for arrears of rent due in respect of a jalkar. The appeal is allowed, the orders of the Courts below are set aside and the respondent's objection under Section 47, Civil P.C. dismissed with costs in all Courts-hearing fee in this Court one gold mohur.


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